II 111th CONGRESS 1st Session S. 1789 IN THE SENATE OF THE UNITED STATES October 15, 2009 Mr. Durbin (for himself, Mr. Leahy, Mr. Specter, Mr. Feingold, Mr. Cardin, Mr. Whitehouse, Mr. Kaufman, Mr. Franken, Mr. Dodd, Mr. Kerry, and Mr. Levin) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To restore fairness to Federal cocaine sentencing.

1.

Short title

This Act may be cited as the Fair Sentencing Act of 2009.

2.

Cocaine sentencing disparity elimination

(a)

CSA

Section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) is amended— (1)in subparagraph (A)(iii), by striking 50 grams and inserting 5 kilograms; and (2)in subparagraph (B)(iii), by striking 5 grams and inserting 500 grams. (b)

Import and Export Act

Section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)) is amended— (1)in paragraph (1)(C), by striking 50 grams and inserting 5 kilograms; and (2)in paragraph (2)(C), by striking 5 grams and inserting 500 grams.

3.

Elimination of mandatory minimum sentence for simple possession

Section 404(a) of the Controlled Substances Act (21 U.S.C. 844(a)) is amended by striking the sentence beginning Notwithstanding the preceding sentence,.

4.

Increased penalties for major drug traffickers

(a)

Increased penalties for manufacture, distribution, dispensation, or possession with intent To manufacture, distribute, or dispense

Section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)) is amended— (1)in subparagraph (A), by striking $4,000,000, $10,000,000, $8,000,000, and $20,000,000 and inserting $10,000,000, $50,000,000, $20,000,000, and $75,000,000, respectively; and (2)in subparagraph (B), by striking $2,000,000, $5,000,000, $4,000,000, and $10,000,000 and inserting $5,000,000, $25,000,000, $8,000,000, and $50,000,000, respectively. (b)

Increased penalties for importation and exportation

Section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)) is amended— (1)in paragraph (1), by striking $4,000,000, $10,000,000, $8,000,000, and $20,000,000 and inserting $10,000,000, $50,000,000, $20,000,000, and $75,000,000, respectively, and (2)in paragraph (2), by striking $2,000,000, $5,000,000, $4,000,000, and $10,000,000 and inserting $5,000,000, $25,000,000, $8,000,000, and $50,000,000, respectively.

5.

Enhancements for acts of violence during the course of a drug trafficking offense

Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall review and, if appropriate, amend the sentencing guidelines to ensure that the penalties for an offense involving trafficking of a controlled substance provide tiered enhancements for the involvement of a dangerous weapon or violence, including, if appropriate— (1)an enhancement for the use or brandishing of a firearm or other dangerous weapon; (2)an enhancement for the use, or threatened use, of violence; and (3)any other enhancement in this respect that the Commission considers necessary.

6.

Increased emphasis on defendant’s role and certain aggravating factors

Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall review and, if appropriate, amend the sentencing guidelines to ensure that the penalties for an offense involving trafficking of a controlled substance adequately take into account the culpability of the defendant and the role of the defendant in the offense, including consideration of whether enhancements should be added, or existing enhancements should be increased, for the following aggravating factors associated with the offense: (1)The defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood. (2)The defendant is an organizer, manager, supervisor, or leader of drug trafficking activities. (3)The defendant maintained an establishment for the manufacture or distribution of the controlled substance. (4)The defendant distributed a controlled substance to an individual under the age of 21 years or over the age of 64 years, or to a pregnant individual. (5)The defendant involved an individual under the age of 21 years or over the age of 64 years, or a pregnant individual, in the offense. (6)The defendant distributed a controlled substance to an individual who was unusually vulnerable due to physical or mental condition, or who was particularly susceptible to criminal conduct. (7)The defendant involved an individual who was unusually vulnerable due to physical or mental condition, or who was particularly susceptible to criminal conduct. (8)The defendant used threats, coercion, or intimidation to involve an individual in the offense. (9)The defendant manufactured or distributed the controlled substance in a location described in section 416(a) or section 419(a) of the Controlled Substances Act (21 U.S.C. 856(a) or 860(a)). (10)The defendant bribed, or attempted to bribe, a Federal, State, or local law enforcement officer in connection with the offense. (11)The defendant was involved in importation into the United States of a controlled substance. (12)Bodily injury or death occurred in connection with the offense. (13)The defendant used another person to purchase, sell, transport, or store controlled substances and used impulse, fear, friendship, affection, or some combination thereof to involve such person in the offense when such person had a minimum knowledge of the illegal enterprise and was to receive little or no compensation from the illegal transaction. (14)The defendant engaged in witness intimidation, tampered, or destroyed evidence, or otherwise obstructed justice in conjunction with the investigation or prosecution of the offense. (15)Any other factor the Commission considers necessary.

7.

Increased emphasis on certain mitigating factors

Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall review and, if appropriate, amend the sentencing guidelines to ensure that the penalties for an offense involving trafficking of a controlled substance adequately take into account mitigating factors associated with the offense, including— (1)whether the defendant had minimum knowledge of the illegal enterprise; (2)whether the defendant received little or no compensation in connection with the offense; (3)whether the defendant acted on impulse, fear, friendship, or affection when the defendant was otherwise unlikely to commit such an offense; and (4)whether any maximum base offense level should be established for a defendant who qualifies for a mitigating role adjustment.

8.

Emergency authority for United States sentencing commission

(a)

In general

The United States Sentencing Commission, in its discretion, may— (1)promulgate amendments pursuant to the directives in this Act in accordance with the procedure set forth in section 21(a) of the Sentencing Act of 1987 (Public Law 100–182), as though the authority under that Act had not expired; and (2)pursuant to the emergency authority provided in paragraph (1), make such conforming amendments to the Sentencing Guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law. (b)

Promulgation

The Commission shall promulgate any amendments under subsection (a) promptly so that the amendments take effect on the same date as the amendments made by this Act.

9.

Report on effectiveness of drug courts

(a)

In general

Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall prepare a report analyzing the effectiveness of drug court programs receiving funds from the Drug Court Discretionary Grant Program of the United States Department of Justice’s Office of Justice Programs. (b)

Focus

The report required by subsection (a) shall— (1)assess the Department of Justice’s efforts to collect data on the performance of federally funded drug courts; (2)address the effect of drug courts on recidivism and substance abuse rates; (3)address any cost benefits resulting from the use of drug courts as alternatives to incarceration; (4)assess the Department of Justice’s response to previous recommendations made by the Comptroller General regarding drug court programs; and (5)make recommendations concerning the performance, impact, and cost-effectiveness of federally funded drug court programs.